State ex rel. Wis. Dev. Auth. v. Dammann

• Decision Date: 11 January 1938
• Citation: 228 Wis. 147,277 N.W. 278
• Parties: STATE ex rel. WISCONSIN DEVELOPMENT AUTHORITY et al. v. DAMMANN, Secretary of State (three cases).
• Court: Wisconsin Supreme Court

228 Wis. 147

277 N.W. 278

STATE ex rel. WISCONSIN DEVELOPMENT AUTHORITY et al.

v.DAMMANN, Secretary of State (three cases).

Supreme Court of Wisconsin.

Jan. 11, 1938.

Appeals from orders and peremptory writs of mandamus by the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

On petitions filed in three actions by the Wisconsin Development Authority, a Wisconsin corporation, as relator, and in which V. M. Murray joined in one action, and Norris E. Maloney joined in another action, and Howard I. Tuttle, Inc., joined in the third action, alternative writs of mandamus were issued to compel the defendant, Theodore Dammann, as Secretary of State, to audit under chapter 334, Laws 1937, St. 1937, §§ 20.514, 199.01 to 199.07, accounts for indebtedness incurred by the Wisconsin Development Authority to each of the parties who joined with it as relators. The defendant filed a motion in each case to quash the alternative writs, and upon entry of orders denying those motions and ordering the issuance of peremptory writs, and the issuance of such writs, the defendant appealed from those orders and writs.Harold E. Stafford, of Chippewa Falls, for appellant.

Orland S. Loomis, Atty. Gen., John Ernest Roe, Sp. Counsel, and Norris E. Maloney, both of Madison (Charles B. Perry, of Milwaukee, of counsel) for respondents.

R. M. Rieser, J. W. Rector, Roy G. Tulane, and William Ryan, all of Madison (Olin & Butler, of Madison, of counsel), amici curiae.

FRITZ, Justice.

The ultimate issues involved on these appeals are: (1) Was chapter 334, Laws 1937, St.1937, §§ 20.514, 199.01 to 199.07, validly enacted by the Legislature; and (2) is that act constitutional.

[1] The appellant questions the validity of the enactment of chapter 334, Laws 1937, by the Legislature because on June 16, 1937, as appears from the Senate Journal, that House attempted to act on the passage of the bill (one purpose of which was to make an appropriation) with but seventeen members present although, on the passage of such a bill in the Senate, the attendance of at least twenty members was required to constitute a quorum, under section 8, article 8, Wis.Const., which, so far as material here, reads: “On the passage in either house of the legislature of any law which ** makes *** an appropriation of public *** money *** three-fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.”

Upon fifteen of the members then present voting for the passage of the bill, it was duly declared passed; a motion for reconsideration was made and defeated; and a motion was adopted ordering the bill messaged immediately to the Assembly. Before that was done in fact, a motion was made in the Senate on June 18, 1937, to reconsider the action by which the bill was ordered messaged to the Assembly, and it was also proposed to expunge the record of the vote purporting to pass the bill from the Journal. Then, on a point of order, it was asserted that because less than the number required by the Constitution to constitute a quorum on the passage of an appropriation bill were recorded on the question of its passage, the attempted passage was invalid, and the action ordering the messaging of the bill to the Assembly was also void. The president pro tempore held the point of order well taken; that the attempted passage of the bill was a nullity; and that it reverted to its former status of but an engrossed bill. Thereafter, the Senate and also the Assembly duly passed it with the required quorum in attendance in each House, and it was duly approved by the Governor and published.

As there were not sufficient members in attendance in the Senate on June 16, 1937, to constitute the quorum required by section 8, article 8, Wis.Const., to act on an appropriation bill, there was not then in attendance a legislative body capable under the Constitution of transacting legislative business in relation to the passage of the bill; and therefore those present were wholly without power to take any such legislative action in relation thereto. Under Rule 16 of the Senate, its parliamentary practice was governed by the rules in Jefferson's Manual, one of which reads: “Effect of No Quorum on Questions. When from counting the House on a division it appears that there is not a quorum, the matter continues exactly in the state in which it was before the division and must be resumed at that point on any future day.”

In an explanation of that rule in Cushing's Parliamentary Law, in sections 369 and 370, it is stated: “When, upon a division, it appears, that a quorum is not present, the question, upon which such division occurs, ordinarily remains undecided. ***”

Consequently, the attempted passage of the bill in the Senate on June 16, 1937, was a nullity. It was as a thing not done at all; and not an act that was but defectively performed by a body possessing the power and the right to perform it perfectly. Webb v. Carter, 129 Tenn. 182, 165 S.W. 426;Wilson v. Atwood, 270 Mich. 317, 258 N.W. 773;Heiskell v. Baltimore, 65 Md. 125, 4 A. 116, 57 Am.Rep. 308. Therefore, the status of the bill in the Senate continued as it was before the votes were taken on June 16, 1937, until that House subsequently acted effectively by voting the passage of the bill when the required quorum was in attendance. By that passage and the subsequent valid action by the Assembly and the Governor, chapter 334, Laws 1937, was duly enacted.

For consideration of the questions raised as to the constitutionality of chapter 334, Laws 1937, it suffices to note the following matters: These actions were brought to test the validity of that act by seeking to compel the Secretary of State to audit thereunder accounts for indebtedness incurred by the Wisconsin Development Authority (hereinafter called the W. D. A.) to V. M. Murray, Norris E. Maloney, and Howard I Tuttle, Inc. The accounts are for services performed for the W. D. A. since the enactment of the act (1) by V. M. Murray in conducting a survey of the resources and facilities of the state for the production, transmission, distribution, and furnishing of light, heat, water, and power in the state; (2) by Norris E. Maloney in promoting and encouraging the creation of a co-operative association in Crawford county to engage in furnishing light, heat, water, and power, and the dissemination of information in relation thereto; and (3) by Howard I. Tuttle, Inc., for mimeographing form letters addressed to the executive officer of each of 508 incorporated cities and villages in the state for the purpose of promoting municipal ownership of public utilities, and the dissemination of information relative thereto.

Prior to the enactment of chapter 334, Laws 1937, the W. D. A. was incorporated under the general incorporation laws of Wisconsin as a nonstock, nonprofit sharing corporation for the purpose of promoting and encouraging municipal and co-operative acquisition and operation of all forms of public utilities, and of engaging in the utility business as a holding or as an operating company. Under its articles of organization, membership in the corporation is not open to the public. Neither its members nor its officers are to be chosen by the electors, or appointed by any officer of the state. They are not required to take the oath of office prescribed by section 28, article 4, Wis.Const.; and there is no limitation upon the salaries which may be paid to them or the corporation's employees. By section 199.01 of chapter 334, Laws 1937 (creating sections 199.01 to 199.07 and 20.514, Stats.) the W. D. A. was “designated and selected as an instrumentality for the execution of certain duties and functions provided in section 199.03”; and by section 20.514, Stats., there was appropriated to the W. D. A. $10,000, and “annually thereafter, beginning July 1, 1937, sixty thousand dollars for the execution of its duties and functions under section 199.03.” In section 199.03, Stats., it was provided that “Subject to the provisions of section 199.02” the W. D. A. “shall use and expend the funds appropriated to it by section 20.514 solely for the execution of the following duties and functions.” Those duties and functions are stated in subdivision (1) to (7) of section 199.03, Stats., and may be summarized as follows:

“A. To promote or encourage the organization or creation of (1) municipal power districts under chapter 198, or (2) of co-operative associations or non-profit corporations, to engage in the production, transmission, distribution or furnishing of light, heat, water or power or the rendering of street or interurban railway or bus services;

“B. To promote or encourage the acquisition, ownership, construction, operation or management of any plant, equipment or facilities, or part thereof for the production, transmission, distribution or furnishing of light, heat, water or power or the rendering of such railway or bus services, (1) by any cooperative association or non-profit corporation or any group or combination thereof; (2) or by any municipality, municipal power district, or other political or governmental units of the state, or any group or combination thereof;

“C. To (1) survey the resources and facilities, existing and potentially available, for the production, transmission, distribution and furnishing of light, heat, water and power in the state; and (2) make studies and surveys (a) for the economical development, use and conservation thereof as will best provide an abundant and cheap supply of these essential services for industrial, agricultural, commercial, governmental, transportation and domestic purposes, and (b) for the coordination of water power and fuel power developments with the regulation of rivers by storage or otherwise for water supply, navigation, flood control, soil conservation, public health, recreational and other uses; “D. To collect and disseminate information and engage in research,...